THE SUPREME COURT OF DELAWARE
Until 1951

The "Leftover Judge"
System

By Henry R. Horsey and William Duffy

The first Constitution of The Delaware State was fashioned under wartime
conditions and brought "radical" changes to the judicial system of the
"counties of New-Castle, Kent and Sussex, upon Delaware."3 A "Supreme Court" was created as the trial court for the state, with Courts
of Common Pleas for each county "The Court of Appeals" was the court of
last resort to which an appeal from the Supreme Court lay in matters of
law and equity. The court's members included the president of Delaware
State, three appointees of the Legislative Council and three appointees
of the House of Assembly. However, the Court of Appeals existed in name
only, with no elections to the court until 1788, and there is little or
no evidence that it ever functioned.

In contrast, from 1777 to 1792 the Supreme Court of Delaware served
as the primary statewide court. The first chief justice of the state of
Delaware was William Killen, with John Evans of New Castle and John Cooke
of Kent County the remaining justices. David Finney of New Castle and
Colonel John Jones of Sussex County soon succeeded Evans and Cooke. Killen,
born in Ireland, later became Delaware's first chancellor under the Constitution
of 1792. Finney, born in this country but educated in Ireland, was reputed
to be the wealthiest citizen in Delaware and an ardent Whig. Finney's
devotion to the revolution was epitomized by his steadfast refusal, during
the war, to accept severely depreciated Continental currency for other
than face value, a practice that ultimately led to his destitution.

During the revolution there was apparently little civil litigation in
Delaware, and the Supreme Court was principally occupied with criminal
matters, especially treason. Toryism was considered rampant in Sussex
County, and all Sussex judges were said to be "Tories of deepest dye."4 Sussex Countians defiantly carried on trade openly with English ships
and some paid for it dearly. In one case, eight men, following trial and
conviction in 1780, received the following sentence from Chief Justice
Killen:

That you return to the prison from whence you came, from thence you
must be drawn to the place of execution and when you come there you
must be hanged by the neck but not till you be dead, for you must be
cut down alive, then your bowels must be taken out and burnt before
your face, then your head must be severed from your body and your body
be divided into four quarters and these must he at the disposal of the
Supreme Authority of the State.

Under Delaware's first peacetime constitution, adopted in 1792, the court
system was substantially reshaped. The Supreme Court remained a trial
court of statewide jurisdiction. The court of last resort was retitled
"The High Court of Errors and Appeals." Its members consisted of the chancellor
(a newly created judicial position) and all the judges of the Supreme
Court and of the Courts of Common Pleas who had not sat in the cause below.
Thus, the High Court became a court of leftover judges. One reason given
for not creating a separate court of last resort was a concern that the
judges of that court would not have much to do except when they were convened
to hear an appeal. The chancellor was designated to preside over the court
unless disqualified and thus was accorded a position higher than that
of the chief justice of the Supreme Court.

During this period, it was apparently the custom that the chief justice
of each of the courts of general jurisdiction should be a trained lawyer,
but associate justices were generally laymen, with the former being paid
twice that of the latter. From 1800 to 1828, of the twenty-two judges
who had served on both the Supreme Court and the Courts of Common Pleas,
only two were trained lawyers who had practiced law before appointment.

The cumbersome structure of the Delaware judiciary became evident in
1830 when Chancellor Nicholas Ridgely died, following a thirty year term
in office. Two nominees refused appointment as chancellor, including Nicholas'
half-brother, Henry M. Ridgely, Kensey Johns, then chief justice of the
Supreme Court, finally accepted appointment as chancellor.

Under a new constitution adopted the following year, the Supreme Court
was eliminated as a trial court, as was the practice of permitting the
appointment of lay judges. The elimination of lay judges led to a dramatic
change in the character of the Delaware judiciary. The judicial system
created by that Constitution continued almost to the end of the century
when, in 1897, the current Constitution was adopted.

The judiciary of Delaware under the state's first two constitutions was
largely composed of men who served in other positions of considerable
responsibility. Many had served on the Committees of Correspondence of
the three counties, originally convened in 1774 to oppose acts of Parliament
and the King and, especially, the blockading of the port of Boston. Nineteen
of the thirty-nine members of the county Committees of Correspondence
were later elected to serve as judges. Seven of the judges under the Constitution
of 1792 served as governors of Delaware and five as United States senators.

The Twentieth Century

Law in our society largely reflects the morals and values of the people
the law governs. In 1900 Delaware's economy was based primarily on agriculture.
The census counted 184,735 persons. Social and commercial life was divided
by both gender and race. Women were still twenty years short of the franchise,
and legal segregation would not end for fifty-four years. Delaware, sitting
astride the Mason-Dixon line, was commonly regarded as a "northern state
with a southern exposure."

The Delaware Supreme Court and the state judicial system had been freshly
minted by the 1896-1897 Constitutional Convention. That system had a collection
of separate constitutional courts but all of them, with engaging simplicity
were administered by the same judges. The legal affairs of the 185,000
citizens were tended to by an active bar that numbered less than 150;
six lawyers per year, on average, were admitted to the Delaware bar between
1865 and 1900.

The Supreme Court was on of the constitutional courts, and because its
members were also the trial judges of the state, it is somewhat difficult
to isolate the court’s appellate function from trial litigation. Using
the same judges to try cases and to sit in review of their brethren who
did is, measured by contemporary standards, both quaint and unthinkable.
But to keep that practice in perspective, it should be remembered that
as late as 1869 the United States Supreme Court justices "rode circuit"
and sat as trial judges.

While there was little in the daily routine of judicial administration
to suggest change, there was one event in 1897 that appeared no larger
than a tiny cumulus cloud on a distant horizon. For the first time, the
constitution that was adopted in 1897 authorized the organization of corporations
by an administrative proceeding, rather than by a special act of the General
Assembly. In 1899 the first legislation implementing that provision was
enacted and, with it, Delaware's rush to corporate preeminence had begun.

The 1897 Constitution made significant structural changes in the Delaware
judicial system. The Supreme Court became what its name always implied,
a court of last resort (replacing the "High Court of Errors and Appeals").
For the first time all judges were required to be "learned in the law,"
although a law school degree was not required. The number of law judges
on the Supreme Court was increased from four (the chief justice and three
associate justices, one from each of the three counties) to five with
the creation of the position of "Associate Justice at Large." The chancellor
remained the senior officer of the court, taking precedence over the chief
justice. Judicial terms were limited to twelve years. All justices were
appointed by the governor subject to confirmation by the Senate. No more
than a simple majority could belong to the same major political party.

Apart from structural change, the justices of the Supreme Court remained,
as before, leftover judges and would so remain for another half century.
Thus, in an appeal from the Court of Chancery, the justices comprising
the Supreme Court would generally be five in number: the chief justice
and the four associate justices. In contrast, on an appeal from the Superior
Court or other law courts, the Supreme Court would generally number three
or more, consisting of the chancellor as the presiding officer and such
other of the five law judges as had not sat in the cause below.

The Supreme Court sat as the court of last resort to review final judgments
of the Superior Court, the Court of Oyer and Terminer and the Court of
General Sessions as well as to receive appeals from the Court of Chancery.

Chief Justice Charles B. Lore
1893-1909

The twentieth century history of the Supreme Court began with a nineteenth
century holdover, Chief Justice Lore. Charles B. Lore was born in Odessa,
New Castle County, in 1831. Admitted to the bar in 1861, he later served
as attorney general and was elected to the Forty-eighth Congress in 1882.
While practicing law, the future chief justice had an unusual and significant
impact on the education of lawyers.

When in active practice Mr. Lore's office was always filled with students,
thirty or more having graduated under his care, to become, many of them,
among the ablest members of the Bar.

Upon the death of Chief Justice Alfred P. Robinson, Charles Lore was
appointed his successor for life (subject to good behavior) on March 21,
1893. When the new constitution was adopted in 1897, the term of Chief
Justice Lore and all other judicial officers was ended. But three sitting
judges were reappointed: John R. Nicholson as chancellor, Lore as chief
justice and Ignatius C. Grubb as associate justice. The newly appointed
associate justices were William H. Boyce of Georgetown, James Pennewill
of Dover and William C. Spruance of Wilmington.

Chief Justice Lore thus became the senior law judge under the new constitution,
second to the chancellor in judicial rank. Like his four-law judge colleagues,
he sat as a trial judge in the Court of Oyer and Terminer, the Court of
General Sessions, the Superior Court and the Orphans Court. Grubb, originally
appointed an associate justice in 1886, continued to serve until 1909.
These six judges constituted the Supreme Court at the beginning of the
twentieth century.

Judge Pennewill, who sat with Chief Justice Lore for many years and
succeeded him as chief justice, gave several charming after-dinner recollections
at Bar Association meetings in Rehoboth in the 1930s. Pennewill described
Chief Justice Lore as a "loveable man [who was] exceedingly popular, especially
with the common people, indeed too generous and charitable for his own
good or for that of his family." But, according to Pennewill, Lore was
a somewhat different person in court:

Chief Justice Lore was quick in reaching his conclusion, impulsive
and impatient of delay...

Lore's disposition was to decide the case at once and very briefly
give the reasons therefore. He had decided in his own mind what was
the right of the matter and was not bothered by decisions in other States,
which he thought were always hopelessly conflicting anyway....

Lore had plenty of confidence in his opinions which [one of his colleagues,
Judge] Grubb sometimes called "spitting opinions."6

There was also a touch of admiration in that criticism because Judge Grubb
said:

"Pennewill, how in the devil is it that Lore can decide so many cases
apparently without much thought, and be always right? It must be intuition."

Pennewill described Grubb as the opposite of Lore. "Grubb wanted time,
and much time, to think about the case and if he wrote the opinion, he
did it with the utmost care. It was revised and re-revised until he believed
it perfect in substance and form." Grubb's concept of loyalty and duty
to the court became, in Pennewill's words, "almost an obsession with him,"
causing Grubb to wreck his health and become so weak near the end of his
term of service that he wished to arrange to have a couch placed on the
bench so that he could recline during the afternoon session of the court.
He was only dissuaded from doing so by Chief Justice Lore, who told Grubb,
"If you do such a ridiculous thing, I shall leave the Bench and will not
return until the bed is removed."7

In 1900 the Supreme Court reported three decisions. Over the remaining
years of Chief Justice Lore's term, the caseload of the Supreme Court
remained small, averaging five or six cases per year.

During Chief Justice Lore's tenure, the Supreme Court functioned not
much differently than its pre-1897 predecessor. And, as Professor Dolan
has stated:8

During the first decade of the Court's existence little effort was
made to change the old rules. Rather the Court tended to cite from early
English authorities in upholding the old law. As an example of this,
the Constitution of 1897 contains a provision for the payment of condemnation
money in cases involving the placing of security whenever appeals from
judgment are taken. The Court, however, availed itself of the common
law rules, and it would seem that the effort on the part of the Constitutional
Convention of 1897 to eliminate the ambiguity of the common law rule
in respect to security placements was not recognized.

It seems clear that the court had not been given any new significant
institutional authority by the Constitution of 1897. The trial courts
continued to hold center stage for the vast majority of litigation and
judicial decision-making. But a sea change was in the making for the Court
of Chancery, and later for the Supreme Court, through the constitution's
"eliminat[ion of] the time honored and highly political process of creating
corporations by special legislative act and [provision] for incorporation
only under general law."9

Chief Justice James Pennewill
1909-1933

James Pennewill was the first chief justice of Delaware to be appointed
in the twentieth century. He proceeded to establish the record, not since
matched, of consecutive years of service on the bench - thirty-six - and
years of service as chief justice - twenty-four. A Sussex Countian by
birth and educated at Princeton, Pennewill had moved to Dover at age twenty-one
to begin "reading law" with Nathaniel B. Smithers, a prominent attorney
practicing law on the Dover Green in a white clapboard one-story building
that still stands. In 1878 Pennewill was admitted to the Delaware bar
and practiced law in Dover for twenty years.

The forty-three-year-old Pennewill, one of the immediate beneficiaries
of the Constitution of 1897's provision removing all sitting judges, was
appointed by Governor Ebe Tunnell to be an associate justice of the Supreme
Court and resident judge of Kent County. He became the newest member of
the Supreme Court then composed of Chancellor Nicholson, Chief Justice
Lore and Justices Grubb, Boyce and Spruance.

Before adoption of the Seventeenth Amendment to the federal constitution
in 1913, United States senators were selected by their respective state
legislatures. In 1907 a delegation of state senators offered Pennewill
a chance to leave the bench to become a United States senator, succeeding
the late Senator J. Frank Allee of Dover. To the surprise of the delegation,
Pennewill declined their offer on personal grounds: he said he could not
afford to take the paycut. The lofty position of United States senator
then paid the less-than-lordly sum of $1,500 annually in comparison to
Pennewill's then-annual salary of $3,000.

During his years of judicial service, Pennewill came to be known as a
man of modest disposition and friendly manner. The work of the Supreme
Court was not particularly demanding, as the number of appeals filed averaged
about ten a year.

Two years later, in June of 1909, Pennewill’s term as associate justice
expired as did those of all other court members. With little hesitation,
recently elected Republican Governor Simeon Pennewill, after nominating
Charles Minot Curtis to be chancellor, appointed his younger brother as
chief justice. There was apparently little, if any, claim of nepotism
in the appointment. As Senator Daniel O. Hastings has written, "Any Republican
Governor would have named Judge Pennewill Chief Justice, and nobody questioned
the propriety of his being named by his brother"10 The governor
reappointed William Boyce as associate justice but replaced Justices Spruance
and Grubb with Henry C. Conrad of Wilmington as resident judge of Sussex
County and Victor B. Woolley of Wilmington as judge-at-large.

Woolley won out over other candidates who had the support of George V.
Massey, a noted lawyer and general counsel for the Pennsylvania Railroad
and a man of significant influence in Delaware politics for many years.
Massey’s only objection to Woolley was expressed in an admonition, "[d]on’t
appoint a lawyer to be a judge who has written a book on the law."11

Massey was correct to refer to Woolley as a scholar. For several years
he had been a lecturer on Delaware practice at the University of Pennsylvania
Law School, and in 1906 he had benefitted the entire bench and bar with
his publication of Practice in Civil Actions and Proceedings in the Law
Courts of the State of Delaware. The book became an authority; indeed,
it was the only written primer on state court procedure and practice.
Almost ninety years later Woolley on Delaware Practice, as it is commonly
called, is still relied upon by Delaware lawyers, particularly in matters
of execution process.

The governor filled out the court by appointing his secretary of state,
Daniel O. Hastings, to be resident judge for New Castle County. Two years
later Hastings resigned to return to private practice and Herbert L. Rice
was appointed to succeed him.

In 1914 Woolley resigned to accept an appointment to the Third Circuit
Court of Appeals. Woolley chose as his first law clerk George Burton Pearson,
Jr., who later served as Delaware’s first statutory vice-chancellor, and
later as an associate justice of the Delaware Supreme Court. Thomas Bayard
Heisel was appointed to succeed Woolley.In 1914 the Supreme Court consisted
of Chancellor Curtis, Chief Justice Pennewill and Judges Boyce, Conrad,
Rice and Heisel.

As the senior presiding member of the Supreme Court, Chancellor Curtis
was later described in a moving tribute by former federal Judge Hugh M.
Morris as a judge’s judge, able to sit:

With dignity and ease. His questions to counsel were few. The shafts
of those he asked were feathered with courtesy and kindness, but pointed
with sagacity. His basic ideas of right, long stored in his mind, made
him keenly sensitive and responsive to the relative values of the equitable
principles in their application to the varying factual ingredients of
the different causes before him.12

In 1921 the terms of all state judges appointed in 1909, including Pennewill’s
expired. What followed made 1921 long remembered as the year of the "deal".

In 1921, the Republicans had again elected as governor William D. Denney,
fondly known by his close friends for his phlegmatic demeanor as "Wild
Bill". Denney first announced, as expected, that he would reappoint his
longtime friend and Dover neighbor, Chief Justice Pennewill, to a second
term. But he denied reappointment to Chancellor Curtis; this was met with
disbelief in the bar and sent political shock waves through the state.
Chancellor Curtis, in the mind of nearly all members of the bar, had established
himself as an able and excellent keeper of the Court of Chancery. Curtis
wished to be reappointed and was confident that his record merited reappointment.
As was later said of him:

In the performance of his duties [Curtis] decided the cases before
him in accordance with the right as he saw the right under the law and
the facts. Of all else he was utterly oblivious. No shadow of friendship,
favor, animus, or effect upon himself ever neared him while arriving
at his conclusions, or caused his hand to quaver while formulating his
opinions, orders and decrees.13

Notwithstanding petitions signed and presented by more than seventy members
of the New Castle County bar and a like petition from many members of
the Kent County bar, Governor Denney offered the chancellorship not to
Curtis, a fellow Republican, but to Josiah O. Wolcott, a Democrat and
a United States senator from Delaware.

To be sure, Wolcott was a lawyer and a descendant of a distinguished
family of lawyers and Delaware’s first popularly elected United States
senator, but he had not practiced law for some time. Notwithstanding his
deep admiration of Curtis, and to no surprise of his close friends, Wolcott
readily accepted the governor’s appointment as chancellor and immediately
resigned his seat in the Senate. This provided the Republicans with a
rare political opportunity – that of replacing a Democratic senator with
a Republican. Governor Denney appointed T. Coleman du Pont of Wilmington
to the vacancy. DuPont had conferred a substantial benefit upon the state
by buying the land necessary for a public road from the north to the south
boundaries of Delaware and then personally paying for the construction
of that road. But the use of eminent domain for land acquisition through
farms in Kent and Susses Counties was not a popular action in all parts
of those counties. See Clendaniel v. Conrad, Del. Supr., 83 A. 1036 (1912).

Denney's appointment of du Pont led to public charges and countercharges.
Quickly the sequence of appointments and resignations came collectively
to be known as the "deal" or the "dirty deal." Most fingers pointed to
du Pont as its architect. The plan, of course, hinged on the governor's
appointment of Wolcott as chancellor and denial of reappointment to Curtis.
That denial was attributed by some to a decision Curtis had made four
years earlier in the case of John W Cooney Co. v. Arlington Hotel Co.,
Del. Ch., 101 A. 879(1917), aff'd with exceptions sub nom. du Pont v Ball,
Del. Supr., Del. Supr., 106 A. 39 (1918) (bill to assess stockholders
for unpaid subscriptions, the most conspicuous such stockholder being
T. Coleman du Pont).

Ultimate vindication of the regrettable and uninvited contest of two
eminently qualified men for the same judicial office lay in the extraordinary
contributions that Josiah 0. Wolcott made over the seventeen and a half
years of his service as chancellor of Delaware. Judge Pearson later recalled
the spartan "office" of Chancellor Wolcott, consisting of a small desk
and gooseneck lamp, in the stacks of the State Law Library in Dover There
Wolcott worked without a secretary, writing his opinions in longhand.
Pearson attributed Wolcott's conduct to his determination to ask for nothing
after succeeding Curtis.

Chancellor Wolcott carried to new heights the high regard and respect
of lawyers and corporate boards throughout the country for the quality
of the Court of Chancery's decisional law. During those years, Wolcott's
judicial wisdom and judgment attracted lawyers and litigants from around
the nation to Delaware as a preferred forum for litigation.

Governor Denney completed his judicial appointments in 1921 by replacing
Boyce, as associate justice and resident judge of Kent County, with William
Watson Harrington, a Dover neighbor and relative by marriage. He appointed
Charles S. Richards of Georgetown associate justice and resident judge
of Sussex County. Six months later, Governor Denney appointed Richard
S. Rodney an associate justice at large. Scholar, historian and judge,
Rodney was Delaware's Renaissance man in letters and law during a very
productive life.

Thus, in 1922 the Supreme Court consisted of Chancellor Wolcott, Chief
Justice Pennewill and Judges Harrington, Rice, Richards and Rodney. In
the twenty-four years of Pennewill's term as chief justice, case filings
in the Supreme Court increased from nine a year in 1909 to fifteen a year
in 1933. Over those years approximately 237 cases were filed, or an average
of ten new cases per year. Over the following twenty-three years, from
1933 to 1956, case filings would dramatically increase from eleven annually
in the first five years to about thirty-five annually in the last five.

Particularly worthy of note among the opinions of the Supreme Court authorized
by Pennewill as chief justice was Bodell V. General Gas & Electric Corp.,
Del. Supr., 140 A. 264 (1927) (bill to enjoin General Gas from issuing
additional shares of stock to holders of Class A common rather than equally
to Class A and Class B stockholders). The court affirmed the chancellor's
findings that the defendant directors had justified the disparity in prices
by a showing of fairness in the light of all the circumstances so that
what appears to be an injury turns out to be a benefit to those complaining.
The court concluded that "the acts of the directors objected to were performed
in good faith, in the exercise of their best judgment, and for what they
believed to be the advantage of the corporation and all its stockholders."14

Over the ensuing sixty plus years, the court has applied the underlying
rationale of Bodell in various factual contexts, as recently as 1985 in
Moran V. Household Int'l, Inc., Del. Supr., 500 A.2d 1346 (1985).

In 1933, upon completion of his twenty-fourth year as chief justice,
Pennewill retired at age seventy-nine and died two years later in 1935.
Pennewill's thirty-six years of service on the Delaware bench is said
to be the "longest uninterrupted service of any judge in Delaware's history."15

Chief Justice Daniel J. Layton
1933-1945

Two weeks after the expiration of Pennewill's second term, Governor C.
Douglas Buck announced the appointment of Daniel J. Layton as chief justice.
Elected attorney general the previous November, and after serving in office
for only six months, Layton resigned to become chief justice. Buck reappointed
Josiah O. Wolcott as chancellor and Harrington and Richards as associate
justices of the Supreme Court.

Chief Justice Layton, a fifty-four year old native of Sussex County,
came from a family associated with Delaware's judicial history from earliest
times. A man of robust physique and athletic prowess, he had been a pitcher
at the University of Pennsylvania. Following graduation from the Law School
of the University of Pennsylvania and service in the offices of Ward &
Gray in Wilmington, Layton was admitted to the Delaware bar in 1903. Layton
then practiced law in Wilmington until 1915, when he returned to Georgetown
to practice until his election as attorney general and later elevation
to the Supreme Court. Layton's dominance on the athletic field continued
in the courtroom as a litigator and later in his service as chief justice.

During Layton's tenure as chief justice, his colleagues in the law courts
included Judges William Watson Harrington, Charles S. Richards, Richard
S. Rodney, David J. Reinhardt, Frank L. Speakman and Charles L. Terry.
In 1935 Frank L. Speakman was appointed resident judge of New Castle County
succeeding Judge David J. Reinhardt who had died after serving only two
years on the bench.

In 12 years on the bench, Layton wrote 221 of the 511 opinions handed
down by the law courts, including 49 of the 106 opinions issued by the
Supreme Court. One of Layton's landmark decisions was Guth V. Loft, Del.
Supr., 5 A.2d 503 (1939). In powerful and uplifting language, Chief Justice
Layton defined for the court the duties imposed upon directors of Delaware
corporations. The duty was that of a fiduciary, that is, the highest duty
that the law creates. And in no uncertain terms he outlined the penalties
for violation of that duty. While there are differing views as to whether
Guth is or is not applicable to a specific fact setting, the law of the
case is written in stone in Delaware corporation law. There is no dissent
from its principles. Another of Layton's landmark decisions was Bovay
v. H.M. Byllesby & Co., Del. Supr., 38 A.2d 808 (1944), reversing the
chancellor's dismissal of a suit for an accounting and finding the complaint
to state a claim for fraud and unfair dealing against corporate officers
and directors for breach of trust, not "mere torts."

As William Prickett, Sr. stated at the proceedings in memory of Chief
Justice Layton:

The Chief Justice wrote English, not a jargon of legalese. No "saids",
"to-wits", "hereinaboves", or "aforementioneds" appear in any of his
opinions. His language was striking in its clarity and in its picturesqueness.16

Unquestionably, Chief Justice Layton was a brilliant judge with a genius
for defining fundamental concepts in corporate law. But, unfortunately
his aggressive domination of a proceeding at oral argument frequently
silenced even his strong-willed colleagues. Worse still, Layton's air
of apparent hostility extended to the lawyers arguing before him, whom
he would repeatedly challenge in a combative manner. Judge Collins J.
Seitz recalls: "It's an old story in the law heard everywhere about the
judge who kept interrupting the lawyer who was arguing his case. Finally,
the lawyer got irritated, and said, 'Your Honor, I don’t mind your interrupting
me, but I hope you win it for me!"'

Indeed, as an eminent lawyer remembers, Chief Justice Layton seemed to
feel the "need to destroy you if he didn't agree with you." As a consequence,
and despite his achievements, Layton failed to be reappointed in 1945
in one of the most painful episodes in Delaware judicial history. The
story is recounted by Professor Carol Hoffecker in her recent book, Federal
Justice in the First State.

Governor Bacon, a Republican, nominated Layton and Judge Charles S. Richards,
both well-known Republicans, to succeed themselves as chief justice and
associate justice respectively, but the Senate, a majority of whom were
also Republicans, twice rejected both nominees. It was generally said
that the opposition to Layton was mounted by Hugh M. Morris, a former
United States District Court judge but then a practicing attorney in Wilmington,
and joined in by certain Sussex County lawyers who thought they had suffered
too long under Layton's wrath in the courtroom. In a compromise arrangement.
the governor withdrew Layton's name and nominated Judge Richards to be
the new chief justice. He was confirmed. The governor then appointed James
B. Carey of Georgetown to be the resident judge for Sussex County, succeeding
Judge Richards.

But the political and judicial fallout of Layton's failed renomination
continued. In 1946 the term of Judge Richard S. Rodney ended. Having completed
twenty-four years of service as Judge of the Superior Court and as an
associate justice of the Supreme Court, Rodney was universally acknowledged
to be one of the most respected and loved judges in Delaware history.
Governor Bacon then took his revenge for the Senate's rejection of Layton,
making Rodney the victim. Bacon let it be known that, notwithstanding
the fact that the constitution required the appointment of a Democrat,
under no circumstances would he reappoint Democrat Rodney. In January
of 1946 Governor Bacon nominated Vice-Chancellor George Burton Pearson,
Jr. to fill the vacancy on the Supreme Court created by the expiration
of Judge Rodney’s term of office. Pearson, a close friend and admirer
of Judge Rodney, had supported his candidacy for reappointment and, in
the end, he accepted the governor's offer only when it became certain
that Judge Rodney would not be reappointed.

Judge Rodney returned briefly to private practice before receiving an
appointment to the United States District Court for the District of Delaware
in 1946. He remained on that court until his death in 1963 and never failed
to serve with wisdom and grace.

While the Layton years on the Supreme Court were often difficult and
controversial for the bar, the period was one of outstanding growth for
Delaware corporate law. Much of this growth was due not only to the judicial
skill of Chancellor Wolcott but also to the brilliance and productive
work of Chief Justice Layton. It is the judicial work product of luminaries
like Curtis, Wolcott and Layton that provides the enduring legal and moral
basis for much of what is right with the body of Delaware decisional law.

Chief Justice Charles S. Richards
1945-1951

Charles Sudler Richards' service of thirty-five years on the Delaware
courts fell only one year shy of Pennewill's accomplishment and occurred
in a time of rising caseload. Born in Georgetown in 1878, he had a family
ancestry that went deep into Sussex County history. Educated in Georgetown
public schools, Richards graduated from Wesley Collegiate Institute in
Dover in 1899. He then studied law at the University of Pennsylvania and
in his father's law office before admission to the Delaware bar in 1904.

Richards' opportunity for public service came in 1921 with the expiration
of the terms of all state judges who had been appointed twelve years earlier.
Governor Denney turned to Daniel O. Hastings for advice as to a proposed
slate of judges and Hastings, in turn, consulted with Robert H. Richards,
a leader of the bar and a man for whom Hastings had a deep respect. Richards
suggested that the governor consider Richards' brother Sudler for one
of the vacancies. Hastings relayed the suggestion to the governor who
readily agreed. Shortly thereafter Governor Denney nominated Richards,
then forty-three years old, to be resident associate judge of the Superior
Court for Sussex County and an associate justice of the Supreme Court.
He was promptly confirmed.

As a judge, Richards established a reputation as a quiet and somewhat
distant person who possessed a trait common to all good judges: he was
a good listener. To those who did not know him, said Chief Judge Caleb
M. Wright of the United States District Court for the District of Delaware,
at proceedings in memory of Judge Richards, he:

might have conveyed the impression of being a rather cold and formidable
person. However, this was not the case. I will admit he was not one
to waste words or to confide in others to any great degree. In private
conversation he was a good listener - a virtue hard to come by these
days. He might ask a few pertinent questions in order to get a full
and complete expression from you of your opinion of the subject matter
under discussion, but would not express himself if he did not believe
it necessary or unless specifically called upon to do so, in which case
this was done as succinctly as possible. He exhibited this same trait,
but to a lesser degree, when sitting as a judge.

He had what I must describe, for no better term that comes to mind,
as a "puckish sense of humor."17

In 1933 Richards was reappointed by then-Governor C. Douglas Buck to
a second twelve-year term on the court; upon completion of that term in
1945 and following the failed nomination of Layton, Governor Bacon nominated
Richards for chief justice. After confirmation, the Supreme Court consisted
of Chancellor William Watson Harrington, Chief Justice Richards and law
Judges Rodney, Speakman, Terry and Carey.

In February of 1946 Chancellor Harrington appointed Collins J. Seitz
of Wilmington to succeed Pearson as his statutory vice-chancellor after
the latter took Judge Rodney's former place on the Supreme Court.

One particularly notable decision issued by the Supreme Court during
Richards' tenure was Ringling Bros. -Barnum & Bailey Combined Shows, Inc.
v. Ringling, Del. Supr., 53 A.2d 441(1947), an opinion written by Judge
Pearson defining a shareholder's voting rights in terms that can be found
in decisions of the court forty years later.

On December 19,1947 Caleb R. Layton, III, son of former Chief Justice
Daniel J. Layton, was appointed to succeed Judge Speakman when his term
expired. In 1949 Judge Pearson, to the disappointment of his colleagues
on the court, resigned to become an executive officer of Wilmington Trust
Company, and Daniel F Wolcott of New Castle, son of former Chancellor
Josiah O. Wolcott, was appointed to succeed Pearson as an associate judge
of the Superior Court and an associate justice of the Supreme Court.

In that same year, the second leg18 of an amendment to the
Delaware Constitution passed, making the statutory vice-chancellor a constitutional
judge. The incumbent Seitz then became the seventh judge of the Supreme
Court and perhaps the youngest constitutional judge in the twentieth century.
He joined a court consisting of Chancellor Harrington, Chief Justice Richards
and Judges Terry, Carey, Layton and Wolcott.

In December of 1950, upon the expiration of Chancellor Harrington's
term of office, Wolcott was appointed chancellor of Delaware and Daniel
L. Herrmann, then assistant United States attorney for Delaware, was appointed
a judge of the Superior Court and associate justice of the Supreme Court.
The final membership on the Supreme Court under Article IV of the 1897
Constitution consisted of Chancellor Wolcott, Chief Justice Richards,
Judges Terry, Carey, Layton and Herrmann and Vice-Chancellor Seitz.

Pursuant to the terms of the 1951 constitutional amendment creating a
separate Supreme Court, Chief Justice Richards became president judge
of the Superior Court and Orphans' Court, offices he held until he retired
on January 1, 1956. At the proceedings in memory of Judge Richards, Justice
James B. Carey remembered him as:

very deliberate in making decisions. He would try to get to the bottom
of every point. Many people looked upon him as a conservative man, yet
it was during his term first as Chief Justice and then President Judge
of the Superior Court, that numerous changes were made in our substantive
and adjective law. The outmoded civil rules of practice in this Court
were fully revised. The criminal rules were likewise modernized through
a committee which he appointed. He concurred in all those changes.19

During the same memorial proceedings, William S. Potter, speaking on
behalf of the state bar, captured Chief Justice Richards' judicial philosophy
and temperament.

As a judge, Charles Sudler Richards was guided by basic principles.
A conservative by nature and training, he was a strong adherent to strict
construction. He was a common law judge firmly and steadfastly following
the rule of stare decisis. Lawyers who appeared before him knew what
would be required of them -comforting knowledge to the advocate. Above
all else, he was a judge of outstanding patience and consideration to
both lawyers and laymen. Throughout his thirty-four years on the bench
he discharged his duties as Resident Judge, Associate Justice, Chief
Justice and President Judge ably with dignity and firmness.20

A Short History of the Court of Chancery of the State of Delaware
1792-1992, at 33.

Daniel O. Hastings, Delaware Politics 1904-1954, at 25 (1961).

Id. at 27.

Memorial Tribute to Charles M. Curtis, Following his death in 1945
(from the private papers of Judge Pearson).

Id.

Id. at 268.

For an excellent memoir of Chief Justice Pennewill and a synopsis
of his addresses to the Delaware bar Association, see the two-part piece
authored by David A. Drexler, Esquire, in The Delaware Lawyer (1983).

An amendment to the Constitution may be proposed in either House and,
if approved by two-thirds of all members elected to each House, the
first "leg" is completed. If the next General Assembly approves the
amendment by the same two-thirds vote in each House, the amendment becomes
part of the Constitution. See U.S. Const. art. XVI, § 1.